This document is associated with the William & Mary rape case, as described in the blog post The Elephant on Campus.

Date: Thu, 23 Feb 2006 19:17:17 -0500
From: “Sam Sadler”
Subject: [students] Some Thoughts I Want to Share
To: students

To the Student Community:

This is a different message from the ones I ordinarily send you. It is more serious in tone and longer. Please bear with me.

I have shared thoughts with you before, as has President Nichol, about the real challenges we face in dealing with sexual assault. Many of you have responded with helpful suggestions about how we should approach this issue. Your ideas have been instrumental in crafting our expanded approach to sexual assault. In recent days, however, attention has been shifted away from the central issue to a particular incident from last semester. Understandably the stream of flyers, press releases and individual accusations have raised questions and concerns for some of you. Perhaps you are among those who wonder why the College has not said more, or whether there is any basis to some of the allegations. Perhaps you are among those who have just wished the debate taking place in some campus quarters was being conducted more civilly, or even that it would just go away. Nothing I can say will respond to all of those concerns, but there are some thoughts I can offer that I hope will shed some light on a few of them.

Why we can’t talk about specific cases or allegations. The Family Education Rights and Privacy Act (FERPA), a federal law, prohibits all educational institutions from sharing personally identifiable information from a student’s record without that student’s consent. So you need to know at the outset that the College is prohibited by federal law from commenting on student disciplinary matters. Now that makes a good deal of sense. You would not want an institution to be able to release to a third party your grades, or to talk about judicial or honor cases involving you without your permission. While the law protects you, it can also place institutions in a difficult position, most especially when private matters become publicly disclosed and debated. Even when false or misleading statements are made, or incomplete information is revealed, universities are prevented from responding with the full and complete truth. If newspapers, other publications or informal pundits mischaracterize university actions, we are prevented from setting the record straight. Some are certainly aware of these constraints, and I have known students who have aired their grievances through the media to take advantage of it. The problem is you can’t really know when such is the case or where the truth might be in what you are hearing. I hope that by understanding FERPA and how it directs the College’s actions in individual student matters, you might be better able to put some of what you may read or hear in perspective.

The difference between criminal and campus judicial proceedings – As you know, virtually every organization of which you or I will ever be a part has rules for its members. We are expected to abide by those or we subject ourselves to sanctions. These organization-specific rules are different from those of the criminal code because they govern our relationships and behaviors in a particular setting. That is true of university codes of conduct. They are not the same as the criminal code and are not, therefore, governed by the same standards. In fact, college and university codes of conduct in many instances establish higher standards of behavior than do criminal statutes. We live in a close community, one that necessitates a high degree of respect, integrity and tolerance. Therefore, we ask more than that you avoid committing felonies. It is not a felony, for example, to plagiarize a paper, but plagiarism is a violation of our Honor Code.

Colleges and universities also employ a different standard of proof from that of the criminal code when determining responsibility for alleged wrongdoing. Alleged misconduct is not judged by the criminal law’s standard. But the standard this university uses, “clear and convincing evidence,” is also higher than the standard, “more likely than not,” used in the civil courts. If you were sued for $50 million dollars, the standard by which your case would be decided would be the “more likely than not” standard not the “clear and convincing evidence” standard we use or the “guilt beyond a reasonable doubt” standard used in criminal cases. I say that because there are those who would have you believe that our standard of proof is deficient. It is not and it is higher than that of a great many other colleges.

Because we have our own policies for student conduct and these are not dependent on the criminal code and because we have a different standard for determining responsibility, it is quite possible, even likely at times, that someone would be subject to campus judicial procedures regardless of whether criminal prosecution would be impossible, difficult or inadvisable. That means that the dismissal of a potential criminal case does not demonstrate - one way or the other - the necessary outcome of a student disciplinary matter. The claim some have made that student disciplinary charges should be dropped if criminal charges are dismissed or not filed at all ignores the differences between the two systems.

Free speech - Some of you have speculated about the motives of those who have been behind articles and flyers revealing the name of a student who is alleged to be the accuser in one of our sexual assault cases. Such an approach is not one to which we are accustomed at William and Mary. Some have argued that the course of action taken by two independent student publications shows no regard for the pain they have caused individual students, nor for the impact of their publicity on future complainants, or on those who might be accused of transgressions. The university, however, can not stop these things from happening -– not unless the behavior violates a College policy. Just as we can’t control the criminal justice system or the civil litigation process, we can’t control what happens under the guise of free speech, regardless of how hurtful or divisive we might think it to be. The best response to speech with which we disagree is the expression of reasoned and civil opposition.

Concerns - I am concerned that what has and is transpiring will deter future victims of sexual assault from coming forward and obtaining the help they need - including having individuals sanctioned if responsibility for wrongdoing can be established. I wish it weren’t so, but I fear that the events of the past few weeks present that danger. If it becomes more difficult to report sexual assault, the crime and its victims will be forced back into the shadows. We simply must not allow such a tragedy to happen at William and Mary. I hope you will join with me in a determined effort to address issues of sexual assault with openness, and with all the heart I know this community possesses.

I am also concerned that now there seems to be an effort underway to undermine faith in our judicial system. Much of what is being alleged doesn’t seem to relate at all to what I know has happened in the judicial cases of which I am aware. The judicial system we have in place has been thoughtfully shaped with student input over a long period of time. Its procedures are examined every year, and changes are made with your input when modifications seem justified. And every policy and procedure we employ receives a final review by and approval of the Office of the Attorney General of the Commonwealth. Our judicial system contains multiple checks and safeguards to ensure its fairness, and it is administered by staff and by students who are committed to both the College and to the students who become involved in its workings. It is critically important to us than any student accused of misconduct, no matter how serious, be confident that the system will work in a way that is even-handed, thorough, and fair. That means that the system has to protect the rights of the accused as well as the accuser and it must function in a manner whereby innocent people are not found responsible for something they didn’t do. That is certainly the goal. Is every student satisfied with the outcome of his or her case? Of course not. But that doesn’t mean the system is unfair. I administer the appeals process. Just today, I had occasion to notify a student that a sanction he had been assigned had been reduced through appeal. The system works. Protections are built into the process, and it is worthy of your trust.

There is much more I wish I could say. I do hope you now know why I can not, however. And I hope that what I have said will help you place some of the assertions and allegations in the context of the realities I have explained. I know that no amount of clarification from me will stop painful things from being said and written in the coming weeks. Even when we can’t control what might be said, however, we can remember our core values and we can prove what kind of community we are. If some seem determined to use questionable tactics, we can seek higher ground. If some try to exploit and to hurt, we can re-commit ourselves to understanding, to compassion, and to responsibility. We can insist that the William and Mary community not be deterred from our intent to shine a bright light on sexual assault, even when some would seek to make the price of that effort dear to pay. We can and we must redouble our efforts.

William and Mary has been a huge part of my life since I entered here as a student over forty years ago. I know the heart of this place and I see it everyday in you. I see it in your greeting as I meet you on campus. I see it as you excel in the classroom and on our courts and playing fields. I see it as you prepare for Spring Break service trips that will take you to far places and to some near by to share your time, talent and energy with others. I saw it on the stage in Ragtime and was moved by it. And I see it in the eyes of a member of our community who is about to realize his dream of being a competitor in the Paralympic Games. Such generosity and nobleness of spirit can not be dimmed by controversy or by the actions of a few.

Recently President Nichol wrote: “We have much to do. There are skills to be mastered, discoveries to be made, services to be rendered, traditions to be honored, contests to be won, lessons to be learned, eyes to be opened and hearts to be lifted. This is, as ever, the work of the students, faculty and staff of the College. Even on more difficult days, I am beyond honored to play a small role in it. I’m unwilling to lose sight of that. I recommend the course to you as well.” Those are appropriate sentiments indeed with which to end this message to you.

I sincerely hope you find this letter, as long as it is, helpful -- now and in the days ahead.

Sam Sadler